Opinion
184
February 18, 2003.
Judgment, Supreme Court, New York County (John Stackhouse, J.), rendered August 10, 2000, convicting defendant, after a jury trial, of two counts of assault in the first degree, and sentencing him, as a second felony offender, to two consecutive terms of 25 years, unanimously affirmed.
PATRICIA CURRAN, for Respondent.
ROBERT B. GARCIA, for Defendant-Appellant.
Before: Nardelli, J.P., Mazzarelli, Buckley, Williams, Lerner, JJ.
The People's reverse-Batson application (Batson v. Kentucky 476 U.S. 79; People v. Kern, 75 N.Y.2d 638, cert denied 498 U.S. 824) was properly granted. The record supports the court's express and implied findings (see People v. Payne, 88 N.Y.2d 172, 185) that the race-neutral reasons provided by defense counsel for the peremptory challenges at issue were pretextual, and these findings are entitled to great deference (see People v. Hernandez, 75 N.Y.2d 350, affd 500 U.S. 352). Defendant's demeanor-based explanation for his challenge to one juror was found by the court to be unsubstantiated, and with respect to the other two jurors at issue, there was evidence of disparate treatment by defendant of similarly situated panelists. To the extent that defendant is challenging the procedures by which the court disposed of his Batson application, such claim is unpreserved (see People v. McLeod, 281 A.D.2d 325, lv denied 96 N.Y.2d 899; People v. Morales, 246 A.D.2d 302, lv denied 91 N.Y.2d 975), and we decline to review it in the interest of justice. Were we to review this claim, we would reject it (see People v. Hameed, 88 N.Y.2d 232, 237, cert denied 519 U.S. 1065; People v. Payne, 88 N.Y.2d at 184).
Defendant's suppression motion was properly denied. Defendant argues that the photographic array was rendered unduly suggestive by the fact that defendant was the only person pictured wearing a gold chain, when both victims had described their attacker as wearing a medallion on a chain. Although this difference between defendant's appearance and that of the other persons depicted should have been avoided, we find that under the circumstances the ordinary and inconspicuous chain worn by defendant in the photograph, unadorned by any medallion or other device, did not single defendant out so as to taint the identification procedure (People v. Gega, 188 A.D.2d 305, lv denied 81 N.Y.2d 886).
The challenged testimony about how one of the victims learned that defendant had been arrested was properly admitted over defendant's hearsay objection because it completed the narrative, provided background information explaining the events leading to defendant's arrest, and was relevant to issues raised at trial concerning this victim's conduct subsequent to the crime (see People v. Tosca, 98 N.Y.2d 660). Since it was made abundantly clear to the jury that the nontestifying declarant at issue had no knowledge of the instant crime, there was no danger that this testimony might have created the impression that a nontestifying witness had implicated defendant. To the extent that defendant is raising a Confrontation Clause claim, such claim is unpreserved (People v. Kello, 96 N.Y.2d 740, 743-744), and we decline to review it in the interest of justice. Were we to review this claim, we would reject it (see United States v. Reyes, 18 F.3d 65, 70-71).
The challenged portions of the prosecutor's summation did not deprive defendant of a fair trial (see People v. Overlee, 236 A.D.2d 133, lv denied 91 N.Y.2d 976; People v. D'Alessandro, 184 A.D.2d 114, 118-119, lv denied 81 N.Y.2d 884).
The record does not establish that defendant's sentence was based on any improper criteria and we perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.